Loborec v Police No. Scgrg-99-1162 Judgment No. S489

[1999] SASC 489

LOBOREC v POLICE
[1999] SASC 489

Magistrates Appeal

1. DUGGAN J.      The appellant has appealed against his sentence on eight counts of false pretences.  The offences took place over a period from 15 December 1995 to 29 May 1996.  During this time the appellant was employed by St George Bank.  He worked in South Australia and he was required to establish a client base for the bank and service the needs of the bank’s clients.  During the period of the offending the appellant obtained moneys from various clients’ accounts without their consent and used that money for his own purposes.  In some cases documents were falsified in order for the amounts to be transferred to the appellant.  The total amount of money obtained illegally by the appellant was $130,762.56.  The appellant wrongfully misdirected some of these funds to other accounts, but the amount which ended up in his own account was $117,762.  The St George Bank reimbursed its clients to the extent of $73,821.12.  Restitution by the appellant amounted to $35,300 and the bank recovered a further $35,204 through the sale of the appellant’s property.  As at 8 June 1999, $38,616.53 was outstanding.

2. The appellant pleaded guilty.  He is 39 years of age and has no previous convictions.  When his employer discovered the fraudulent conduct, the appellant went overseas for a time.  He then returned to Australia and went to live and work in Victoria under an assumed name.  He was extradited from there to South Australia.

3. The learned magistrate imposed a global penalty for the offences.  The appellant was sentenced to imprisonment for two years and the magistrate fixed a non-parole period of eight months.

4. Mr Dudek, for the appellant, made it clear on the hearing of the appeal that no criticism was made of the head sentence or the non-parole period imposed by the magistrate.  However, it was argued that the magistrate erred in failing to suspend the sentence.  It was also argued that the magistrate erred in not attaching sufficient weight to a psychiatric report prepared by Dr Czechowicz and a report of a social worker, Mr Colgan.

5. Dr Czechowicz first saw the appellant on 4 August 1999.  He recorded that the appellant had been a soldier in the Croatian army for six months during the war of 1992 and that he had suffered adverse reactions to that experience.  He said that the appellant displayed symptoms consistent with post-traumatic stress disorder and there were also symptoms of depression which appeared to be associated with the stress disorder.

6. In his report Mr Colgan stated that the appellant was mortified by what he had done.  He then traced the history of the appellant’s war service in Croatia.  Although Mr Colgan’s report is very comprehensive and helpful in the manner in which it provides details of the appellant’s background, he expressed various opinions in the report which would seem to go beyond his area of expertise.  In commenting on the effects of the post-traumatic stress disorder diagnosed by Dr Czechowicz, he expressed the view that the appellant’s judgment was seriously impaired and that he was “not fully responsible for his actions”.  Furthermore he expressed the belief that the appellant had no intention to permanently deprive anyone of the funds which he took.  He expressed views about the inappropriateness of imprisonment and its impact upon psychiatric treatment, restitution and rehabilitation.  I have found it necessary to mention these matters because of the ground of appeal which alleges that the learned magistrate failed to pay sufficient regard to Mr Colgan’s report.  It is my view that in the respects which I have highlighted, the report goes beyond what is appropriate for a report of this nature.

7. Dr Czechowicz was called to give evidence on the hearing of the appeal.  I admitted the evidence on a de bene esse basis, but, in its essentials, the evidence did not take the matter very far beyond the report of Dr Czechowicz which was tendered before the magistrate.  Dr Czechowicz said he had seen the appellant on a few occasions since the sentence was imposed and those consultations had confirmed the view he had formed originally and which he had set out in his report.

8. Mr Dudek frankly conceded that the magistrate had taken into account all of the factors relevant to the discretion to suspend the sentence, with the exception of the appellant’s psychiatric condition.  The matters which had been taken into account included the appellant’s previous good character, his achievements, his community involvement, his contrition and plea of guilty and his co-operation with the police after his extradition.  However, as I have said, the focal point of Mr Dudek’s submissions related to the evidence of Dr Czechowicz and, to a lesser extent, Mr Colgan.

9. I have said that Dr Czechowicz first saw the appellant on 4 August 1999.  He said the appellant told him about his experiences in the war.  It would appear that the appellant went to Croatia in January 1992 and, after army training which last two months, he fought in the war in that country for four months.  He said he had witnessed considerable violence and cruelty and it had a considerable effect on him.  He told Dr Czechowicz that he suffered severe emotional consequences, but he did not seek any medical help until he was referred to Dr Czechowicz in 1999.

10. According to Dr Czechowicz, the appellant suffers from post-traumatic stress disorder.  Whilst not excluding the appellant’s present predicament as being a contributing factor to this condition, he said that he was reasonably certain that the appellant’s nightmares and flashbacks were related in a significant degree to his war experiences.  He said the post-traumatic stress disorder was linked with secondary depression and anxiety.  He said the depression caused the appellant to have suicidal feelings. Dr Czechowicz stated in his report:

    “It is my opinion that the fraud in which this man engaged is linked with his depression.  I have examined hundreds of patients who have shoplifted when depressed.  It is well known that some people under the influence of depression attempt to take their life, whilst others ‘commit social suicide’ by stealing or engaging in what a rational person might consider stupid activities, in risking a career, and social standing for minor gain, as is the case for many young shoplifters.  In this young man’s case his responsibility was greater and so his risk was greater, in that he was risking a reasonable career in a bank, over what others may consider money which would not substantially improve his situation, and because his action was repeated it was highly likely that missing sums of money and irregularities in the books would be spotted relatively easily and traced to him.”

11. However, the learned magistrate was not bound to find that the appellant’s condition was solely responsible for the fraud offences.  He said he took into account the evidence of Dr Czechowicz and the fact that the appellant suffered from post-traumatic stress disorder.  He noted that there was no evidence of mental impairment.  He continued:

    “Your counsel also points to the fact in this case I have definite evidence before me in the psychiatric report that you were suffering at the relevant time, from a psychiatric illness.  I agree however, with counsel for the DPP that it was not the only reason for the offending.  There can be no doubt that the financial position in which you found yourself in, with your heavy mortgage and car commitments, was a motivating factor on this course of offending.”

12. His Honour then referred to R v Ashdown (1994) 72 A Crim R 63 a case in which reference was made to the importance of general and personal deterrence in sentencing accused persons charged with serious fraud offences.

13. Mr Dudek argued that there was little scope for general deterrence in a case such as the present.  He relied upon the following passage in the joint judgment of the Court of Appeal in R v Tsiaras [1996] 1 VR 398 at 400:

    “Serious psychiatric illness not amounting to insanity is relevant to sentencing in at least five ways.  First, it may reduce the moral culpability of the offence, as distinct from the prisoner’s legal responsibility.  Where that is so, it affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective.  Second, the prisoner’s illness may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.  Third, a prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence.  The illness may have supervened since that time.  Fourth, specific deterrence may be more difficult to achieve and is often not worth pursuing as such.  Finally, psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person in normal health.”

The applicant in that case was convicted of trafficking in cocaine and possessing cannabis.  There was evidence given at the trial that he suffered from an ongoing psychiatric illness.  It was possible he had schizophrenia at the time of the offence.  He was taking medication which was consistent with a chronic variant of schizophrenia and his symptoms included auditory hallucinations with possible delusions and problems in thinking.

1. In my view, the circumstances in the case of Tsiaras were quite different from those in the present case.  The reasons why this is so appear from the case of R v Yaldiz [1998] 2 VR 376, a subsequent decision of the Victorian Court of Appeal cited by Ms Chapman for the respondent. In that case the appellant was convicted of the attempted murder of his wife at a time when he was suffering from post-traumatic stress disorder. After referring to a number of cases, including Tsiaras, Winneke ACJ said (383):

   “It is true that the courts in those cases expressed the view that serious psychiatric illness falling short of legal insanity is relevant to sentencing because, inter alia, a person suffering from such an illness is not an appropriate vehicle for general deterrence: see Tsiaras at 400. But it must be remembered that in each of the cases to which I have referred the accused was suffering either from schizophrenia or schizophrenic-type illness which obscured the mental intent to commit the crime with which he had been charged. It is not appropriate to simply fasten on to the words “recognised psychiatric disorder’ and then, without reference to the symptoms and consequences of that disorder, to contend that purposes of general deterrence have no part to play in the sentencing process. Whether in the particular case a psychiatric condition should reduce or eliminate general deterrence as an appropriate purpose of punishment will depend upon the nature and severity of its symptoms and its effect upon the mental capacity of the accused.

   In this case, the evidence suggested no more than the respondent was suffering from a post-traumatic stress disorder, a condition by no means uncommon, and it was not said to interfere with the thought processes or to promote delusional behaviour.  Indeed the learned judge found, and the finding is not contested, that the respondent was well aware of the nature and quality of the act charged, and well knew that what he was doing was wrong.”

2. I referred at the commencement of these reasons to factors which make the present case a serious matter.  The appellant was in a position of trust and he defrauded his employer’s clients of a large sum of money.  The offences took place over a period of five months and they involved premeditation and extensive deceit.  The first offence took place at about the time the appellant purchased a house.  Over $38,000 is still owing to the appellant’s employer.

3. In my view the learned magistrate approached the task of sentencing with considerable care.  He acknowledged that there were a number of important circumstances in the case which necessitated consideration as to whether the sentence of imprisonment should be suspended.  In the circumstances, I do not think he was required to ignore general deterrence.  It was open to him to take the view that the appellant’s psychiatric condition was not the only factor relevant to his offending and that a series of deliberate frauds had been committed.  The remarks made by King CJ in Kilmartin v Police (6 August 1997, unreported) are apposite:

   “It was the duty of the learned magistrate to weigh these serious aspects of the appellant’s criminal conduct against the matters personal to him, to which I have referred, which tended in favour of suspension.  The discretion as to whether to suspend the sentence was the discretion of the magistrate, not of this appellate court.  So far as one can tell from the remarks which he made in sentencing, he kept in mind all the matters urged by the appellant’s counsel in his favour and in favour of the suspension of the sentence.  He finally decided that his duty required him to decline to exercise the discretion in favour of suspension.  Despite Mr Ey’s argument I am unable to see that any error has been demonstrated in the sentencing process and the magistrate’s exercise of discretion therefore must stand.”

4. I have taken into account the comprehensive submissions made by Mr Dudek and the evidence of Dr Czechowicz in relation to the future treatment of the appellant, but I have reached the conclusion that the appeal against sentence must be dismissed.  I direct that a copy of these reasons together with Dr Czechowicz’s report and his evidence be made available to the Correctional Services Department so as to assist in such ongoing psychiatric supervision and management of the appellant as might be considered appropriate.